The Taiwan Supreme Court Opines that Fair Use May Not Extenuate Infringement on the Right of Paternity

The types and basis for discretion of fair use in the Taiwan Copyright Act are set out in Articles 44 through 63 and Article 65(II). Further, Article 65(I) of the Taiwan Copyright Actprovides that “[f]air use of a work shall not constitute infringement on economic rights in the work.”However, should an exploiter of a work be considered to be infringing on the author’s right of paternity if he/she exploits the work within the reasonable scope of fair use as specified in the aforementioned articles, but fails toprovide a clear indication of the source of the work in accordance with Article 64? The Taiwan Intellectual Property Court provided conflicting opinions in the judgments of 102-Min-Zhu-Su-Zi-No.57 (rendered on August 6, 2014) and its appeal under 103-Min-Zhu-Shang-Zi-No.26 (rendered on June 25, 2015). The Taiwan Supreme Courtthen, in the judgment of 106-Tai-Shang-Zi-No.215 rendered on February 2, 2017, held and affirmed that "fair use" might not extenuate infringement on the right of paternity.

So, does a failure to provide a clear indication of the source of works constitute infringement on the right of attribution enjoyed by the copyright owner?Conflicting opinions have been provided by the Taiwan Intellectual Property Court. According to the first instance, exploitation of the works at issue by the defendant Hospital was within the reasonable scope of fair use, and thereby shall not constitute infringement on any economic rights of these works, as provided in Article 65(I) and Article 66; however, fair use will not extenuate infringement on the right of paternity automatically. The defendant’s failure to properly indicate the portion of references it exploited that were authored by the plaintiff might mislead others into believingthat the works were created by the defendant Hospital. Therefore, the first instance held that the defendant Hospital infringed on the plaintiff's right of paternity. However, a conflicting judgment was rendered by the second instance, which affirmed the defendant’s failure to indicate the source of the works as required in Article 64, but opined that the required elements of fair use as specified in Article 65 had been met and extenuated infringement on both economic rights and the right of paternity. The case then went to the Taiwan Supreme Court, which reversed the second-instance judgment and remanded it to the Taiwan Intellectual Property Court. The Taiwan SupremeCourt found that Article 64 has made it clear that a person who exploits the work of another person shall provide a clear indication of the source of the work, and that said “clear indication” shall indicate the name or appellation of the author in a reasonable manner, unless the work is anonymous or the author is not known. Moreover, Article 96 further provides that a fine up to NT$ 50,000 (around US$ 1,667) shall be imposed for violations of Article 64. Therefore, the Taiwan Supreme Court remanded this case and indicated that the Taiwan Intellectual Property Court shall re-examine whetherthe defendant's failure to indicate the source of the works constitutesany infringement on the plaintiff's economic rights or the right of paternity.

Although the Taiwan Supreme Court did not specify whether a failure to indicate the source of works constitutes infringement on economic rights or the right of paternity, it concluded that fair use may not extenuate infringement on economic rights or the right of paternity. Comparing the judgment with Article 65 (I) of the Taiwan Copyright Act, the Taiwan Supreme Court should opine that the indication of the source of works is apart of moral rights, and further, whether a failure to indicate the source of a work constitutes infringement depends on whether such a failure misleads others into believing that the work was anonymous or the author was another person. In other words, the Taiwan Supreme Court seemed to prefer the first-instance judgment. It is still worthwhile to follow the retrial and how the Taiwan Intellectual Property Courtwill clarify the relations between fair use and an indication of the source of a work and/or the right of paternity.